News about Divorce Law in New York State

Recent Cases Affecting New York Divorce Law

I read an interesting article about how divorces are handled in Israel. It was initially written by John R Ellison and was published in the Harvard Business review on January to February 1990. The article had to do with our adversarial system in NY Divorce and in other states in America. In the adversary system the idea in divorces is that aggressive representation will result in a good finding of the truth. Unfortunately in New York divorce cases it is often the case that this system fails when couples are of little means. The judicial system is now encouraging more efficient ways of dealing with divorces and family disputes. There are other options other than going to court such as mediation and collaborative divorces. In the case described in the article it was discussed that one wife wanted a divorce but her mother-in-law was pestering her. The court in Israel thought about it and ordered that the husband purchase a ladder so that when the wife wanted to avoid her mother-in-law the latter was available for her to leave. While the result was interesting, the premise behind it is more interesting.

Choose a lawyer who is bent on settling your case rather than a lawyer who wants to litigate. The last resort should be #family #law #litigation and #trial. Most judges in New York County on #divorce cases urge this when litigants appear in their court room. They won't necessarily direct the parties to buy a ladder, but they are wise enough to encourage the litigants to settle out of court and are sensitive to the needs of the party's inability to pay for expensive procedures such as independent psychiatric evaluations, attorneys for children and the like. But sometimes one party or the other drives litigation with unnecessary motions and demands of the court. And under our system of law the litigants are entitled to a fair discovery of assets and a fair discovery of the facts from the other side. Sometimes the litigant needs judicial help to enforce Orders and the like. Most cases that end up in Court are high net worth cases such that the courts are bound to hear arguments from both sides. Further, when there are serious allegations or any allegations for that matter involving custodial Arrangements of the parties and children, especially when issues are raised as to Fitness of the parties drug use or mental illness. the case ends up in Court and the Courts need advise in parsing expert psychological facts gleaned from expert reports that are filled with medical jargon.

The lesson to be learned is to exhaust all remedies out of cout before resorting to judicial intervention. And if all else fails then hire a NYdivorcelawyer who is experienced, wise, well respected amongst her or his peers and Judges, knows the law, and is #trial savy.

Divorce is not the same in every state and is certainly not the same in foreign countries.

So what happens if you are divorcing a spouse who lives in another state or country? The law is very tricky here. Also what happens if you have some property in one state and some property in another state.

Here are the rules of law that control these problems. States can only control assets locating

However, New York permits a court to distribute property located in this state after the issuance of a divorce in another. In a recent court decision involving property in another country the court delt with thi unique factual scenario as follows.

In the case of THA v. MAA, No. 161488/2015, dec. order (N.Y. Sup. Ct., N.Y. Cty., Jan. 18, 2017) there was fraud in that one party concealed their property from the other. In the above case, the wife said the husband stole and converted ot his own use art from the wife. In a case like that, the court can remedy this for a spouse if they find out about it by giving unequal distribution of property to the aggrieved spouse.

Also, there are two prongs that must be met in distribution of property out of state. In order to bring an action in New York you must have in personal jurisdiction over your spouse and jurisdiction over the property at issue. This is known as in personam jurisdiction and in rem jurisdiction.

For example, a New York Court might have personal jurisdiction over both spouses if they live in NY but if the property is outside NY they would lack power to adjudicate the property out of state unless the parties consented to it.

However, as mentioned above, under DRL 236(B), if you have a divorce judgment from another state that affects NY property then the NY court can distribute it between the parties. In the above cited case the NYC court dismissed the wife’s case, saying that it was premature since another divorce case was pending in another country.

In a New York Divorce case, under New York law if you get married in a religious or romantic marriage AFTER you have already been married then the second marriage is void. As such you only need one divorce that being the divorce from the first marriage.

Lisa Beth Older analyzes Ruling by New York Court holding that a Rapist is not entitled to share in martial assets

A New York divorce court recently declined to recognize a rapist’s right to equitable distribution of marital assets in a divorce case. In the recent case of Alice M. v. Terrance T., 2015 NY Slip Op 51913(U) decided on December 23, 2015, a man convicted of viciously raping his wife asked the Court in his New York divorce case to award him equitable distribution of his wife’s pension and other marital assets. In New York there is a presumption that during a divorce the Court should equitably distribute the marital assets between the parties. Domestic Relations Law §236(B)(5) and §236(B)(6).